People v. Acevedo
| Decision Date | 05 December 2013 |
| Citation | 2013 N.Y. Slip Op. 08138,976 N.Y.S.2d 82,112 A.D.3d 454 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Mark ACEVEDO, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
112 A.D.3d 454
976 N.Y.S.2d 82
2013 N.Y. Slip Op. 08138
The PEOPLE of the State of New York, Respondent,
v.
Mark ACEVEDO, Defendant–Appellant.
Supreme Court, Appellate Division, First Department, New York.
Dec. 5, 2013.
[976 N.Y.S.2d 83]
Robert S. Dean, Center for Appellate Litigation, New York (David J. Klem of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.
MAZZARELLI, J.P., SWEENY, DeGRASSE, FREEDMAN, GISCHE, JJ.
Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered December 19, 2011, convicting defendant, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentencing him to an aggregate term of 25 years to life, unanimously modified, as a matter of discretion in the interest of justice, to the extent of reducing the sentence on the murder conviction to a term of 20 years to life, and otherwise affirmed.
The court properly declined to submit manslaughter in the first degree as a lesser included offense. There was no reasonable view of the evidence, viewed most favorably to defendant, that he merely intended to inflict serious physical injury but not to cause death. Defendant, after grazing one victim in the side with a bullet, pointed a gun at another victim, and from between 4 and 10 feet away, shot him three times, including in the chest and back, as he turned to flee ( see e.g. People v. Ramsey, 59 A.D.3d 1046, 1047, 872 N.Y.S.2d 789 [4th Dept.2009], lv. denied12 N.Y.3d 858, 881 N.Y.S.2d 670, 909 N.E.2d 593 [2009] ).
Defendant was not entitled to be present during legal argument on the admissibility of expert testimony on gangs, as well as related legal issues. References to the prosecution's factual allegations did not transform the legal issue into a factual or mixed issue, there was no fact-finding procedure, and there was nothing valuable that defendant could have contributed by his personal presence ( see People v. Rojas, 15 A.D.3d 211, 790 N.Y.S.2d 431 [1st Dept.2005], lv. denied4 N.Y.3d 856, 797 N.Y.S.2d 430, 830 N.E.2d 329 [2005] ). In any event, the court excluded almost all of the evidence the People offered at this colloquy.
Defendant's right of confrontation was not violated when an autopsy report prepared by a former medical examiner, who did not testify, was introduced through the testimony of another medical examiner. The report was not testimonial ( see People v....
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...medical examiners does not violate the Sixth Amendment. See People v. Freycinet, 892 N.E.2d 843, 846 (N.Y. 2008); People v. Acevedo, 976 N.Y.S.2d 82, 83 (App. Div. 2013). In assessing whether a scientific report is testimonial in nature and thus implicates the Confrontation Clause, the New ......
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...450 (2008), the factual indings in an autopsy report were found to be non-testimonial, and thus admissible. See also People v. Acevedo, 112 A.D. 3d 454, 976 NYS 2d 82 (1st Dept. 2013); People v. Hall , 84 A.D.3d 79, 923 N.Y.S.2d 428 (1st Dept. 2011). HEARSAY 5-7 HEARSAY §5:25 Although admis......
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